The complaint petition is filed u/S 35, 38 and 39 of the C.P. Act, 2019 for alleged gross deficiency in service and unfair trade practices by the OPs for rendering services to the complainants. Prayer is submitted for refund of Rs. 1,50,000/- with interest @ 12% per annum from 02.01.2019 till realization and a compensation for Rs. 1,00,000/- for physical and mental harassment and Rs. 50,000/- as litigation cost.

The gist of the complaint as averred by the complainant in a capsulated form is that the complainants Mrs. Banani De and her husband Shri Banshi Dhar De of Kolkata – 700061 got attracted towards the facilities as advertised by the OP 1, Country Vacations (Country Club Hospitality and Holidays Ltd.)  and OP 2, General Manager, Country Vacations (Country Club Hospitality and Holidays Ltd.), Kasba, Kolkata – 700107 for facilities like Club, Fitness Centre, Hotel, Travel Planning Services and Resorts and accordingly these complainants executed membership agreement dated 02.01.2019 by Credit Card payments for a consolidated amount of Rs. 1,50,000/- in favour of the OPs. The OPs promised to offer some additional benefits that in addition to the Club Membership and allied facilities, a Six Nights and Seven days (6N/7D) stay in hotel and resorts every year within the country shall be available against a DAE Card which allows the complainants for an additional stay every year for 6N/7D in abroad locations for next 10 years without incurring extra cost. It was also promised by the OPs to the complainants that the cap of maximum 3 days stay per year at the properties of the OPs can be extended to a 7 days cap per year spread over next 10 years without any extra cost. A discount of 15% to 20% minimum, is allowed against the annual maintenance charges payable by the complainants to the OPs @ 10,500/- per year. The OPs obtained signatures of the complainants in the agreement without giving much scope to look into the contents of it. Subsequently the complainants discovered discrepancies between the promises and the contents of the signed agreement with respect to the conditions and clauses. As per the agreement, complainants were allowed membership (Blue Season) but the facilities were mentioned only as 6N/7D (Blue Room type - Studio) with membership validity till 01.02.2029. The membership confirmation letter was also issued. Being dissatisfied the complainants informed the OPs for incorporation of such clauses in the membership agreement or refund of the booking money without any deduction as per their e-mail dated 05.01.2019, 09.01.2019 and 10.01.2019. The OPs replied that a 10 year of Six Nights Seven Days vacation is also eligible for DAE Card holders, which would entitle the complainants to exchange for domestic and international vacations for which they need to contact the DAE directly. Since the OPs failed and refused to incorporate such written promises made to the complainants in the executed agreement, the complainants were compelled to cancel the agreement by e-mail dated 11.01.2019  within cool off period of 10 days. As per clause (26) of the membership agreement date 02.01.2019, the cancellation and discontinuation of the agreement dated 02.01.2019 is allowed for refund after deduction of administrative charge of Rs. 3,800/- and the balance amount would be refunded within 120 days from the date of invoking the cool off period. On 24.01.2019 the OPs communicated the complainants the same and the complainants by an e-mail dated 25.01.2019 clarified that since the written promises were not incorporated in the agreement by the OPs, there was no option but to cancel the membership agreement. The OPs acknowledged receipt of the said mail dated 25.01.2019 of the complainants and replied on the same day on 25.01.2019 stating “We have already forwarded your refund request to the Concerned Department. As per your agreement nominal charges of Rs. 3,800/- will be deducted and the remaining amount will be refunded within 120 working days from the date of invoking cool of period”. Further based on the e-mail of the complainants dated 06.02.2019, it was clarified by the OPs in the reply e-mail dated 06.02.2019 that they have accepted the cancellation request of the complainants. The correspondences were followed by and between both parties vide various mails dated 11.02.2019, 12.02.2019, 27.02.2019, 25.04.2019, 26.04.2019, 28.04.2019 and 02.05.2019 regarding refund of the money. But the OPs, again, by e-mail dated 03.05.2019 replied about their inability to provide any exact date of refund. The complainants further sent reminders by various e-mails dated 06.02.2019, 11.02.2019, 12.02.2019, 19.02.2019, 27.02.2019, 25.04.2019, 26.04.2019, 28.04.2019, 02.05.2019, 03.05.2019 and 06.05.2019. The OPs by e-mail dated 07.06.2019 intimated the complainants that the refund was processed by their accounts department and due to some internal issues the same is getting delayed but in actual no refund was ultimately given by the OPs to the complainants till date. Thereby the OPs have deliberately failed and neglected to refund the money to the complainants in spite of expiry of another 2 years till filing of the case and thereby committing gross deficiency in service and adopting unfair trade practices. The complainants approached the Consumer Affairs Department for redressal of their grievance through mediation by letter dated 24.01.2020 and the department called a tripartite meeting on 18.03.2020 for resolving the issue through mediation duly represented by both parties where the OPs agreed to refund full amount by end of May, 2020. However, the OPs did not agree to refund the interest amount levied due to delay in payment which is evident from the letter of the OPs dated 13.08.2020. As no refund was made by the OPs as promised, this instant complaint petition is filed at the District Commission.

Exhibits from Complainant:-

• Sale agreement dated 02.01.2019 alongwith payment proofs (Anx A)
• Worksheet alongwith handwritten note allegedly from OP party dated 02.01.2019 with promise for discount , exchange of vacation policies including trip abroad, but contested by OPs (Anx B collectively)
• Membership letter /card– undated (Anx C- collectively)
• Email copy from complainant dated 05.01.2019 asking incorporation of 3 nos of clauses and reply of OPs stating exchange provider clause for domestic and international vacations alongwith DAE card. (Annx D- 2 pages)
• Email copy from complainant dated 11.01.2019 ‘ we have no other option than to discontinue with the SALE AGREEMENT for which we are not responsible. Due to the reasons explained above we therefore request you to immediately discontinue the sale agreement and refund our full amount without any deductions’ (Annx E- collectively).
• Email copy from complainant dated 25.01.2019 & OP dated 24.01.2022.(Annx F- collectively)
• Email copies from complainant dated 06.02.2019 and many other emails & from dated 10.02.2019 and many other from OPs.(Annx G- collectively)
• Email copies from OP dated 07.06.2019 acknowledging the refund and seeking time to execute(Annx H- collectively)
• Complain petition by Complainant to Consumer affairs dept. including letter dated 24.09.2020 to both parties by the Dy. Asst Director, Consumer Affairs dept, Govt of WB stating inter alia that it seems that the post tripartite meeting dated 18.03.2020, the OPs are not willing to refund money and resolving dispute  at pre-litigation level and advising complainant to file case at district forum for non compliance by OPs (Annx I- collectively)

Both sides appeared during progress of the case. The complainants filed Affidavit in chief, followed by Questionnaire of OPs and Replies by complainant. The OPs filed W/V, but preferred not to file any evidence and hence the opportunity got closed. During final argument on 16.09.2022, the Ld advocate of the OPs contended that the present complaint is not maintainable as it is an abuse of process of law and has been filed with a malafide intention to enmesh the answering opposite parties in a vexatious litigation so as to wriggle out of the contract and to pressurize the answering opposite parties to cause wrongful gain to the complainants. They contended that membership fees is not refundable and membership. was issued to complainants, which is a non-refundable product and can’t be repudiated by parties, once executed, unilaterally. The Ld. Advocate raised certain legal objections stating that the complainant had not approached this Commission with clean hands and the complainant had no cause of action to file the complaint and it was not a case of 'unfair trade practice' or 'deficiency in service' on the part of the opposite parties. It was also mentioned in the reply that the Sale Agreement was accepted and signed by the parties and the amount, so deposited, was not refundable. Thus there is no question of any deficiency in rendering service or any unfair trade practice on the part of the replying opposite parties. The services to the complainant were strictly as per terms and conditions of the agreement for membership without any breach thereof. Hence, the present complaint is an abuse of the process of law and as such the same is liable to be dismissed with cost. It is also argued that the present complaint is only a manoeuvre with the intention to harass and extort money from the OPs, being a renowned organisation, and no cause of action has even arisen against them. The present complaint is not at all maintainable and therefore, deserves to be dismissed.

Heard arguments of learned counsel for the parties and all other documents available on the file including terms and conditions arrived at between them. Facts relating to availing membership of the opposite parties, deposit of amount by the complainant with them and withdrawal application by invoking cancellation during cool off period for the membership are not disputed. We have also gone through the W/V and BNA and oral arguments by both the parties and Questionnaire vis a vis Replies. Complainants have brought the instant complaint under section 35,38 & 39 of the Consumer Protection Act, 2019 on the allegations that complainants being attracted with the advertisements by the OPs, opted to take the membership of Country Club India Limited. Accordingly to avail the facility of discounted package price on the membership as well as life time club membership and fitness benefits etc. the complainants became the members of the club of OPs by making payment on 02.01.2019 by depositing a sum of Rs. 150000/- through Credit card. In their bid to prove the case, the Ld Advocate of the complainant tendered the affidavit of evidence by exhibiting annexures A to I.

Regarding the particulars of Sale Agreement as exhibited, it is important to note that no grievance in this regard has ever been made by the complainant or the opposite party. It has been stated by the opposite parties that whether the original agreement was under possession of complainant, but the opposite parties never denied having the same entered into, by and between both parties. There is no communication or evidence that the complainant or OPs have raised any grievance in this regard. The complainant brought attention of the court about the express clause under the vacation agreement which states about the cool off period. But the OPs claimed that the refund under any circumstances and the vacation fee is not a refundable deposit and in such a situation, the claim of the complainant that she is entitled to refund of vacation charges as well as fee, is not tenable. But a categorical finding depicts that an amount of Rs.1,50,000/- was paid by the respondent/complainant against proper receipt on 02.01.2019 and no facility was availed by them till the filing of the complaint. A specific finding is also there that no loss has occurred to the opposite parties on account of withdrawal of the membership and the amount of Rs.1,50,000/- was received by them on 02.01.2019, which was not after the date of agreement executed between the parties on 02.01.2019. On perusal of documents available on the file, it is apparent that the agreement dated 02.01.2019 was there between the parties for taking their membership. The complainant was not made aware about the factum of non-refunding of charges and it was not brought to his notice at any point of time and even at the time of acceptance of membership.  The said condition was found to be un-reasonable and illegal by relying upon the order passed by the Hon'ble National Commission in the case of reported as Rajendra Tej Singh v. SSV Developers & Builders 2020 (1) CLT 598 (NC), wherein it has been held that one- sided clauses construe 'unfair trade practice'.

A further finding is also recorded that there was no documentary evidence produced by the opposite parties to show as to how they had suffered any loss on account of withdrawal/surrender of the membership by the complainant. We can take support of law laid down in the case reported as Indira Gandhi Medical College v. Prem Seth 2015 (3) CLT 327 (NC). In that case, the prospectus provided that fee once received shall not be refunded and it was observed that due to withdrawal of candidature by the complainant, the petitioners did not suffer any financial loss. It was further observed that that the purpose of providing Clause for non-refundable in the prospectus was not to make unearned gains but to guard against any financial loss due to sudden withdrawal of student. It was held that equity demanded that they should have refunded the fee. The relevant portion of said judgment is reproduced as under:

"due to withdrawal of candidature by the complainant, the petitioners have not suffered any financial loss. Purpose of providing non-refundable clause in the prospectus is not to make unearned gains but to guard against any financial loss due to sudden withdrawal by a student... Equity demands that they should have refunded the fee."

In the present case, the opposite parties have not led any evidence to show that they suffered any loss on account of withdrawal/surrender of the membership by the complainant. Moreover, a huge amount was collected and the same was forfeited on withdrawal of the membership. However, no such evidence was placed on record to show that in absence of availing such facility, any loss was caused to them.

There is nothing to the contrary that the opposite parties were entitled to forfeit the entire amount received from the complainant, in case no loss was suffered by them. In such a situation, when the complainant did not avail any service of the opposite parties, they had no right to forfeit the amount deposited by the complainant. It is also relevant to mention that the complainant was allured by the representative of the opposite parties without properly explaining the terms and conditions of the vacation Sale Agreement, which was executed later on 02.01.2019 . An amount of Rs.1,50,000/- was paid by the complainant to the opposite parties on 02.01.2019 against proper receipt and no facility was availed by the complainant till the filing of the complaint.

Further, as per Cl (26) of the Sale Agreement  02.01.2019 , the following is to be perused in respect of cool off period :-

“ there shall be a cool off period of 10 days from the date of signing of this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs. 3,800/- to the Company. After deduction of the aforesaid amount of Rs. 3,800/-, the remaining amount would be refunded to the member, within 120 days from the date of invoking of cool of period. For invoking the cool off period, the member shall send a written communication to the country club, central customer care …………. After expiry of the aforesaid period, the entire membership fee is non-refundable under any circumstances”.

As per aforesaid clause of the Sales Agreement, the buyer/member is entitled to invoke cancellation of agreement within 10 days of cool off period, which the complainants have preferred to execute vide email dated 11.01.2019 in clear terms and duly acknowledged by the OP company as evident from their various subsequent mails. The cause of action arose during cool off period as the promised facilities were not included in the Sale Agreement by the OPs and therefore the Complainants invoked their rights to terminate the agreement in clear terms vide email dated 11.01.2019 followed by claim of refund.

The complainants’ claim on refund and compensation in the case in hand for unfair trade practice or deficiency in service is proven beyond doubt. The allegations made by the complainant are supported with documents in written form of communication as proof which were not contested by the Ld. advocate of the OP at any stage. Therefore, these can be relied upon to prove the deficiency in service on the part of the opposite parties. During final arguments, the complainant cited Judgement on the Appeal no 259 of 2019 by SCDRC, Chandigarh in the matter of Country Club Vs Mohini Kapoor & Ors. which in our opinion is of similar background and content wherein refusal to refund by the Appellant (Country Club) on the pretext of irreversibility of agreement clauses was highly criticized as the respondent in this case has preferred to rescind the agreement within 3 days. Reliance can be placed upon another Judgement in the matter of Sanjib Kumar Dey Vs. Chabbi Dey 2015(4) CPR 584 (NC) wherein it has been held that the documentary evidence will always get preponderance over the oral evidence because it is well known axion of law that men may tell lies but the documents cannot. The sequel of documentary evidence and contents thereof reveals that it is possible to fathom for placing reliance on the submission of the complainant and such documentary evidences helps the complainant to enable to stand their case on it’s own legs. From the appreciation of the evidences on record, it becomes clear that the opposite parties are deficient in service. The contract agreement vide which the complainant obtained membership of the Country Club India Ltd, has been admitted inter alia by the opposite parties, though they have contested having possession of the original copy of agreement with complainant, but not denied about execution or content of it in any clear terms. It is also an admitted fact that the complainant deposited a sum of Rs.1,50,000/- on 02.01.2019 for becoming the member of the club. It is also an admitted fact that complainants were entitled to holidays for 6 nights 7 days in a year for two adults. Moreover, the confirmation mail from OP company confirming about processing the refund but backtracking thereafter has not been justified or even dealt by the Ld. Advocate of the OPs at all. The plethora of emails exchanged between the parties exhibits the denial of the OP company to make refund, though cool off period allows the right of cancellation, with almost, no questions asked.

The Hon'ble Supreme Court in the judgment of case Supreet Batra v. Union of India 2003 (1) SLT 730, held that "service provider cannot forfeit the fee or consideration for services, which are not provided.. So this speaks volumes about the 'unfair trade practice' on the part of the opposite parties in causing wrongful loss to the complainant and wrongful gains to the opposite parties.

In similar set of circumstances in the case of M/s Country Club (India) & Ors. v. Nirmal Kumar Pandey R.P. No.237 of 2013 decided on 22.04.2014, the Hon'ble National Commission found the opposite parties to be deficient in rendering service by not providing the agreed services, for which the consumer was held entitled to compensation.

In another case of Country Club Hospitality & Holidays Limited v. Mohini Kapoor Appeal No.259 of 2019 decided on 05.03.2020 (UT Chandigarh State Commission), the opposite parties were found deficient in rendering service and refund of the entire membership fee along with interest and compensation/litigation expenses was ordered.

Hence the complaints’ petition is allowed on account of unfair trade practice being carried out by the opposite parties for not providing the facilities as agreed by opposite parties to the complainants, the complainants have suffered a great mental pain, agony, harassment at the hands of the opposite parties. The act & conduct of the opposite parties amounts to gross negligence, carelessness , deficiency in service and unfair trade practice and the complainants are required to be compensated in accordance with law.

In our considered view the complainants are entitled to refund of the total fee amount of Rs. 146200/-, after deduction of Rs 3800/- as per agreement alongwith cost.

Hence it is Ordered that :-

The OP1 and OP2, jointly and severally, are directed to make refund of Rs. 1,46,200/-, alongwith simple interest @ 9% per annum from the date of invoking right to cancel the sale agreement during cool off period which is 11.01.2019 until full and final recovery. The cost of the litigation is assessed at Rs. 10,000/-. Compliance of this order be made within a period of 60 days from the date of this order failing which, complainants shall be entitled to put the entire order into execution.